1

Mediation Consultants:

A Road Map for Conflict Resolution

Realize CommunicationsPrincipal: Mark Collins

E-Mail: markcollins@realizecommunications.com

2

Mediation: An Introduction

- Conflict is Inevitable

- Conflict Can Be Managed

- Conflict Can Be in Organizations, But Ultimately it is a “Relationship” Issue

3

Mediation Consultants:

Fundamentals

- Process: Road Map, Roles, Responsibilities

-Patience: Establishment of a New “Time” Reality

- Personnel: Address Bias, Perspective and Emotion

4

Mediation Consultants: Mark

Collins

- Professional Experience: Human Resources, Regulatory Affairs, Labor Relations

- Licensed Attorney: Inactive Status

- Various Speaking/Leadership Activities in the Food Industry

- Certificate: Center for Conflict Resolution

5

Negotiation Primer, Part 1

- Negotiation: the process whereby interested parties resolve disputes, agree upon courses of action, bargain for individual

or collective bargaining, and/or attempt to craft outcomes which serve their mutual interests. True or False

- Negotiating means getting the best of your opponent. True or False

- Negotiation: the art of persuading your opponent to take the nice shiny copper penny and give you the wrinkled old

paper money. True or False

- Negotiation: resolving of disagreements, the reaching of agreement through discussion and compromise. True or

False

6

Negotiation Primer, Part 2

- Negotiation: the process between two or more parties (each with its own aims, needs, and viewpoints) seeking to discover a common

ground and reach an agreement to settle a matter of mutual concern or resolve a conflict. True or False

- Negotiation: the tackling of a hazard or problem. True or False

- Negotiation: one or more meetings at which attempts are made to reach agreement through discussion and compromise. True or

False

- Negotiation: An interactive process between two or more parties seeking to find common ground on an issue or issues of mutual

interest or dispute where the involved parties seek to make or find a mutually acceptable agreement that will be honored by all the

parties concerned. True or False

7

Negotiation Primer

8

Mediation Agreement

- Documentation, Documentation, Documentation

- A Mediator’s Objective is to Facilitate a Process

- A Mediator Works on Behalf of Both Parties

- Mediation Consultants Cannot Provide Legal Advice

- A Mediator Must Remain Impartial

- All Parties Have an Obligation to Discuss Real or Perceived Biases on the Part of the Mediator

9

Mediation Agreement

- Primary Responsibility for Resolution Rests on the Parties, not the Mediator

- A Mediator Must Disclose Costs and Obligations of the Parties

- A Mediator Must Disclose a Schedule of Activities and Provide Reasonable Notice of Modifications

- All Parties Should Commit to Working Towards an Agreement

10

Mediation Agreement

Key: Any Party May Withdraw or Suspend the Mediation Proceedings at any Time

The Mediator May Suspend Proceedings for the Following Reasons:

1. if the Mediator feels that the mediation will lead to an unreasonable result (including the incapacity of a participating party),

2. if the Mediator feels that an impasse has been reached, 3. if the Mediator determines that he can no longer effectively

perform the facilitation role or4. if the Mediator feels one or more of the parties are not acting in

good faith.

11

Confidentiality- All parties are subject to confidentiality protocol.

- Parties shall not divulge information gained through this mediation to third parties.

- The Parties shall not subpoena any participant to the mediation process or request the release of information related to this

mediation.

- Confidentiality includes discussions that occur in caucus.

12

Confidentiality Exceptions

- To prevent reasonably certain bodily harm.

- To prevent a party from committing a crime or fraud that is reasonably certain to result in injury to the financial

interests or property of another.

- To secure legal advice about the Mediator’s legal/ethical compliance.

- To comply with another and superseding legal obligation or court order.

- To implement and disclose the obligations of the party’s pursuant to the express language of the mediation

agreement.

13

Elements of an Opening Statement

GOAL IDENTIFICATION

1. SMART

(Specific, Measurable, Achievable,

Realistic, Time Bound)

2. Documentation of Goals

3. Flexibility of the Parties

14

Elements of an Opening Statement

PROCEDURES

1. Mediator’s Opening Statement

2. Parties' Initial Statement

3. Identifying the Interests Versus the Positions

4. Cross Talk I

5. Caucus

6. Cross Talk II

7. Caucus

8. Agreement in Writing

9. Concluding the Mediation

15

Elements of an Opening Statement

CAUCUS

1. Beneficial Step in the Mediation Process

2. Cool Down Period or Reassessment of the Situation

3. Non-Requesting Party Should Take Advantage of the Opportunity

16

Elements of an Opening Statement

GROUND RULES

1. Allow Acknowledgment of Emotion

2. Verbal Statements as “Draft” Statements

3. Interruptions, Partial Thoughts, Clarifications

4. Active Listening, Summarization, Praise

5. Proper Use of Caucus

6. Parking Lot

7. Requests/Counter-Offers/Commitments

17

Elements of an Opening Statement

STRATEGIES FOR FACILITATING EFFECTIVE COMMUNICATION

1. Reality Testing

2. BATNA (Best Alternative to a Negotiated Agreement)

3. Silence

4. Brainstorming

5. Flip Side

6. Reframing

7. So How Would This Work?

8. Range of Possible Options

18

Getting to Yes

Any method of negotiation can

be fairly judged by 3 criteria:

1. It should produce a wise agreement.

2. It should be efficient.

3. It should improve (or at least not damage) the relationship between the parties.

19

Getting to Yes

A wise agreement has 4 elements:

1. It meets the legitimate interests of each side to the extent possible.

2. It resolves conflicting interests fairly.

3. It is durable.

4. It takes community interests into account.

20

Getting to Yes

Principled negotiation has 4 elements:

1. PEOPLE: Separate the people from the problems.

2. INTERESTS: Focus on interests, not positions.

3. OPTIONS: Generate a variety of possibilities before deciding what to do.

4. CRITERIA: Insist that the result be based on some objective standard.

21

Getting to Yes

How to avoid the “people” problem:

1. Perception: what is their reality?

2. Emotion: make them explicit and acknowledge them as legitimate.

3. Communication: talk “to” each other … not “at” or “in close proximity” to each other.

22

Getting to Yes

“Be hard on the problem, soft on the people.”

23

Getting to Yes

Obstacles that Inhibit the Inventing of Options:

1. premature judgment,

2. searching for the single answer,

3. the assumption of a fixed pie, and

4. thinking that “solving their problem is their problem.”

24

Getting to Yes

Insist on using Objective Criteria:

1. frame each issue as a joint search for objective criteria,

2. reason and be open to reason as to which standards are most appropriate and how they

should be applied, and

3. never yield to pressure, only to principle.

25

Getting to Yes

BATNA

1. Best Alternative to a Negotiated Agreement

2. The reason you negotiate is to produce something better than the results you can

obtain without negotiating.

3. BATNA is the standard against which any proposed agreement should be measured.

26

Procedural Guidelines

1. Guard Rails

2. Compass

3. Map

4. Road

5. Performance Criteria

6. Subject to the Review of the Parties

27

Contracts – A Review

1. Mediation Consultants will not provide legal services.

2. However, contract requirements can help begin to illustrate what the parties should consider when framing up an agreement.

28

How to Write aMediation Agreement

1. “Language” is the responsibility of all the parties.

2. Detail how each disputing party will communicate and work with each other

to head off any future conflicts and ensure that the agreement is followed.

3. The agreement “is” the reality

29

Agreement Template

1. Guard Rails

2. Compass

3. Map

4. Road

5. Performance Criteria

6. Subject to the Review of the Parties

30

The Spirit of Mediation

"There is no way to peace,

peace is the way.”

A. J. Muste

31

Conclusion

Questions

Concerns

Statements

Next Steps